TMI Blog2014 (12) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of AAR IT in the case of Target Corporation India (P.) Ltd. [2012 (8) TMI 466 - AUTHORITY FOR ADVANCE RULINGS] distinguished. - It is quite clear that the decision of AAR IT is not applicable and the facts in this case are similar to the case of M/s. Volkswagen India (Pvt.) Ltd. [2013 (11) TMI 298 - CESTAT MUMBAI]. In both of which favourable view was taken in respect of the assessee, we consider that appellant has made out a prima facie case in respect of these amounts. Appellant has made out a prima facie case for complete waiver of pre-deposit and accordingly, the requirement of pre-deposit of balance dues is waived and stay against recovery is granted for 180 days - Stay granted. - ST/2330/2012-DB - MISC ORDER No.21975/2014 - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, it held that the liability of service tax is not attracted in the case of the receiver. He also draws our attention to the relevant portion of the agreement to show that the ratio of the decision in the case of M/s. Volkswagen India (Pvt.) Ltd. is applicable to the present case. 2.1 In Volkswagen case, this Tribunal in paragraph 5.1 observed as follows: 5.1 In view of the clauses of agreements noticed hereinabove and other facts, we hold that the global employees working under the appellant are working as their employees and having employee-employer relationship. It is further held that there is no supply of manpower service rendered to the appellant by the foreign/holding company. The method of disbursement of salary can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were admittedly employed by the US Principal and they were being paid their salaries by the US Principal. They are continuing to be paid their salaries and other service benefits by the US Principal even after secondment. Before the applicant can claim to establish that the employees have become its employees, it has first to show that the employees ceased to be the employees of the US Principal. One would search in vain to find cessation of such original employment. There is also a presumption in law of the continuance of a state of things shown to have come into existence. There is nothing to rebut the presumption that the same continues. On the other hand, the facts strengthen the presumption of continuance. 8. In a recent Ruling in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principal. Therefore, on question No.1, it has to be ruled that what the applicant pays to the US Principal is not in the nature of reimbursement, but it is the income of Target, the US Principal. He submits that according to the ratio of the decision of the AAR IT, in a similar situation like the present one, unless the employer can terminate a service of the employee, it cannot be said that there is an employer-employee relationship between the two. He submits that in this case the appellant cannot terminate an employee and at best he can send him back to Intel US and ask for replacement. In addition, he also draws our attention to the clause relating to reimbursement and submits that there are several benefits included and there are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in that case was not paying salaries to the employees but the money was paid to the principal who seconded the employees, who processed the pay roll and paid amount to the employees. For the services rendered of making the payment to the employees and processing the pay, the principal was to be paid an additional amount of 15 US $ per payroll per cycle per employee. Unlike this in the present case, the salary fixed for the employee is to be paid in both in India as well as in home country of the employee. What has to be paid in the home country of the employee is paid by the appellant to their principal who takes the responsibility of making such payments to the employee in his home country. There is no finding forthcoming anywhere from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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